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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ONUR v the United Kingdom - 29696/07 [2007] ECHR 696 (18 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/696.html
Cite as: [2007] ECHR 696
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18 July 2007
FOURTH SECTION
Application no.
27319/07
by Ümit ONUR
against the United Kingdom
lodged
on 29 June 2007
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Ümit Onur, is a Turkish national who was born in 1978 and now lives in Turkey. He is of Kurdish origin. He is represented before the Court by Mr J Elliott, a lawyer practising in London with Wilson and Co., Solicitors.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, then eleven years of age, his father, his brother and his four sisters arrived in the United Kingdom in 1989 to join their mother who was already there. His father's applicant for asylum was refused but the family were granted exceptional leave to remain which was periodically extended. In 1999 the applicant, along with his father and other family members, was granted the right to remain in the United Kingdom on an indefinite basis. At an unspecified date his mother, father and three of his sisters were granted British nationality. One of the applicant's sisters left the United Kingdom for Turkey in 1993. The family believe she may now be in Iraq. The applicant's father is now deceased.
The applicant speaks Turkish. He states that he has not returned to Turkey since his arrival in the United Kingdom. It appears that he has received some schooling in the United Kingdom, though it is not clear whether he has received any education in Turkey. The applicant is now a chef by profession.
In 2000 the applicant had a daughter by a British national. The child lives with her mother but the applicant states that he remains in regular contact with her.
On 24 September 2006, the applicant married a second British woman by Kurdish rite. A child was born to the couple on 4 March 2007.
On 10 May 1996, the applicant was convicted for driving whilst disqualified and given a sentence of fifty hours' community service.
On 9 July 1996 he was convicted of burglary and given an 18 month probation order.
On 13 September 1996 he was convicted of aggravated burglary and sentenced to eight months of youth custody.
On 28 April 1997 he was convicted for possession of cannabis and given a fine of GBP 30. On 12 September 1997 he was again convicted of possession of cannabis and sentenced to one day's imprisonment.
On 24 October 1997 he was convicted of two counts of burglary and sentenced to two years' imprisonment.
On 5 June 2000, the applicant pleaded guilty to robbery at Wood Green Crown Court. The trial judge noted that the applicant had been one of the ringleaders of the robbery and imposed a sentence of four and a half years' imprisonment. He made no recommendation regarding the applicant's deportation from the United Kingdom.
On 18 May 2005 the applicant was convicted of a road traffic offence and a failure to surrender to custody. He was given a sentenced of 28 days' imprisonment, a fine of GBP 200 and disqualified from driving for nine months.
On 7 September 2001, the Secretary of State for the Home Department wrote to the applicant. The Secretary of State noted the applicant's conviction of 5 June 2000 and stated that he was considering his immigration status and his liability to deportation. The applicant states that representations made on his behalf were not answered and in any event no further action was taken at that stage.
The date on which the applicant was finally served with a deportation order was a matter of dispute in the domestic proceedings. The applicant contended that the relevant date was 6 July 2006. The Asylum and Immigration Tribunal found that the relevant date was 1 October 2006 (see below).
The decision to make a deportation, which was undated, and a subsequent letter, which was dated 5 September 2006 and was entitled “Reasons For Deportation”, state that in view of the applicant's conviction for robbery on 5 June 2000, the Secretary of State for the Home Department deemed it conducive to the public good to make such a deportation order. The letter entitled 'Reasons For Deportation' further noted the applicant's subsequent conviction of 18 May 2005.
The applicant appealed to the Asylum and Immigration Tribunal (the AIT), relying inter alia on Article 8 of the Convention. He argued firstly that the decision to deport him was not in accordance with the law. The relevant paragraph of the Immigration Rules, paragraph 364, had changed on 20 July 2006. The previous rule required the Secretary of State to conduct a balancing exercise, involving striking a balance between the public interest and any compassionate circumstances of the case, taking into account all relevant factors. The new version of paragraph 364 established a presumption that the public interest required deportation. The Secretary of State would consider all relevant factors in considering whether the presumption was outweighed in particular case, though it would only be in exceptional circumstances that the public interest in deportation would be outweighed in a case where it would not be contrary to the European Convention on Human Rights or the Refugee Convention to deport. He argued that the decision to deport him had been taken on 6 July 2006 and thus his case fell to be considered under the old version of paragraph 364 which was more favourable to him.
He further argued that, in light of his extensive private and family life in the United Kingdom and the length of his stay there, the decision to deport him was a violation of Article 8. The applicant also submitted a report prepared by a consultant clinical psychologist who diagnosed him as having mild to moderate depression, panic disorder, mild mental retardation, borderline intellectual functioning and dyslexia.
In its determination of 20 February 2007, the AIT dismissed the applicant's appeal. It found that the relevant date for the decision to deport was September 2006 and that the deportation fell to be considered under the new version of paragraph 364. In the alternative, the AIT found that if they were wrong in this conclusion and the date of the decision was prior to the entry into force of the new version of paragraph 364, it remained satisfied the balancing exercise had taken place and dismissed the applicant's appeal on this ground.
Having examined the evidence before it, the AIT concluded that there was nothing truly exceptional in the applicant's circumstances. It agreed with the Secretary of State's September letter to the applicant and dismissed his appeal under Article 8 of the Convention.
The applicant applied for reconsideration of the tribunal's decision. On 19 March 2007, the Senior Immigration Judge of the AIT refused the application, holding that although the AIT had concluded that the decision to deport was made after the amendment of paragraph 364, it had also considered the alternative. All relevant matters were considered by the AIT and no material error of law was disclosed.
The applicant's application for statutory review was dismissed by the High Court on 16 May 2007.
He was deported to Turkey on 12 July 2007.
B. Relevant domestic law
1. Primary legislation
Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State.
Section 3(5)(b) of the same Act (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.
Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against a decision to deport inter alia on the grounds that the decision is incompatible with the Convention.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
2. The Immigration Rules
The previous version of paragraph 364 of the Immigration Rules (in force until 20 July 2006) provided as follows:
“Subject to paragraph 380, in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. [In the cases detailed in paragraph 363A, deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority]. Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.”
The amended version of paragraph 364 (in force since 20 July 2006) provides as follows:
“Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects...”
Paragraph 380 of the Immigration Rules referred to in both versions of paragraph 364 provides as follows:
“A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention [the European Convention on Human Rights].”
COMPLAINT
The applicant complains under Article 8 of the Convention that the decision to deport him constituted an unjustified interference with his right to respect for his private and family life. He argues that the decision was not in accordance with the law and, in the alternative, that it was disproportionate.
QUESTIONS TO THE PARTIES
2. If so, does the applicant's deportation violate his right to respect for his private and/or his family life contrary to Article 8 of the Convention (Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006 ...)?